Every condo community is required to operate according to its rules and bylaws. Owners, tenants and visitors are all expected to follow them. And while they may feel burdensome at times, rules help promote the safety of owners, and prevent unreasonable interference to the use and enjoyment of the building, common elements, and individual units. Without rules, condos would experience routine chaos.
As part of their duties, condo board members must enforce the condo’s rules and bylaws, and are given certain powers so that violations may be promptly and properly addressed. But, every condo will find itself having to deal with owners or tenants who break the rules. No one is perfect, and when someone makes a mistake, a warning letter will usually be all it takes to correct the issue and prevent the owner or tenant from breaking the same rule again.
In rarer instances, a resident will knowingly break the same rule over and over again. When this occurs, everyone who is impacted by the unwanted behaviour gets frustrated. This is not the time for boards to remain silent, but members may feel that sending another notice of violation, or issuing a small fine, isn’t sufficient. What can be done when residents repeatedly break condo rules? Keep reading to see what options condo associations have.
Start with your governing documents
In most cases, associations can’t jump from a warning level to court when it comes to handling violations. Different condos have different processes, and some states may even require associations to follow specific steps when dealing with violations/infractions. If your state doesn’t have any rules on how to handle violations, then the association is responsible for designing and carrying out protocols. Refer to your governing documents and be very careful to follow each step as it is instructed.
Associations will generally be required to send out one or two warning letters first. Then, they can move on to formal violation notices. Depending on where you live, the next step might involve fines or suspension of rights and privileges. Though it’s a slow process, it’s not something that can be brushed aside. If the matter does end up in court, a judge will ask why the association did not follow the process properly, and may dismiss the case.
Keep detailed records
As with all enforcement matters in a condominium, it is important to investigate alleged wrongdoing or breaches of the condo’s rules and bylaws. Each incident must be handled taking into account its own unique circumstances. Is the offence endangering anyone? Is there a reason why someone is continuing to break a specific rule? As the issue either ends or escalates, documentation is essential.
Utilizing and documenting escalating enforcement measures matters because courts will consider whether the association provided the owner with an opportunity to correct the misconduct before escalating the matter to legal counsel. All complaints, breaches, letters, responses, etc., should continue to be documented throughout the enforcement process.
File with the CAT
If you’ve tried issuing notices, haven’t gotten results, and live in Ontario, you may be able to file an application with the Condominium Authority Tribunal (CAT). The CAT is Ontario’s first fully online tribunal. It uses an online dispute resolution system to help people resolve certain types of condo-related disputes.
The purpose of the CAT is to minimize court cases by providing a streamlined dispute resolution system for condo owners and corporations. Owners, mortgagees, and condo corporations can file applications with the CAT.
The tribunal will accept applications related to certain disputes about pets, vehicles, parking and storage, and indemnification or compensation charges. But, the application must include provisions that are in your building’s governing documents. So, if there is a pet issue, but that specific problem is not addressed in the governing documents, the CAT cannot help. You can learn more about the CAT’s process here.
Fines
It is common for condos to impose fines on residents who continuously break rules. However, fines must be issued according to state laws or governing documents. Some associations are permitted to issue a fine, for example, $100, every day that a violation has not been remedied. But, there is likely a limit to how many days this can carry on. Some places put a cap on how much an owner can be fined.
Many Canadian lawyers would agree that condo fines are not legal in Canada. Under almost all condo declarations, there is broad language that allows the condo to charge back actual costs to an owner for damage or legal fees that were incurred while trying to enforce a rule. That being said, condos in Canada may not want to ask owners to pay a fine for breaking rules.
If the issue still remains after these channels have been exhausted, the board must seek legal help. The issue may end up in court if mediation is not an option.
Eviction: a last resort
Before we go any further, it should be made very clear that condo associations cannot evict an owner as a rule-breaking remedy. Only a court has the power to order someone to leave their home. However, condos may seek this remedy in rare instances.
When all other efforts to enforce compliance have failed, or where the behaviour is so harmful that it renders the relationship between an owner and the condo inherently incompatible, eviction may be the best solution. This happened in once such case where an owner acted violently, abusively and inappropriately towards residents, staff and property management. They assaulted owners, started fires in their unit and breached a court order, among other types of misconduct.
While the court recognized the difficulty of forcing this person to vacate their unit (they suffered from a mental illness), the rights of the other owners and staff had to be balanced against other competing interests. The court ordered the sale of the unit because it did not believe that any remedy other than a forced sale would be sufficient to address the behaviour.
Some states, such as Chicago, make it so condo owners can be evicted for failing to abide by their financial obligations. If a condo owner does not keep up with financial obligations, the association’s board of directors could bring an action against the owner. This is known as an eviction action. Through this type of legal action, the association can evict the owner and temporarily take control of the unit. While this is not an easy (or free) process, sometimes boards don’t have any other choice.
Tips for handling violations
- Get serious or potentially serious issues on your lawyer’s radar early on. This way, it’s easier for them to intervene if the problem does escalate. They can also help guide the board and ensure they are acting according to legislation and condo bylaws
- Gather evidence. If a condo board needs to take enforcement proceedings to court, evidence is critical. Try to collect information about:
~What rule was broken
~When the violation occurred
~Where the violation occurred
~How the violation occurred
~How did the board become aware of the issue/breach of the rule
~Who did not follow the rule
~Was this a first offence or has the person broken the same rule multiple times
~Photographic evidence or witnesses
- If an expert is required to investigate an incident, the board should determine who is responsible for expenses beforehand
- If entry into a unit is ever required, don’t do anything without speaking to a lawyer first
Conclusion
It’s tough to enforce rules in a condo community. But, boards must ensure rules are enforced so that owners, tenants and visitors understand that they cannot do whatever they want without having to face consequences for their actions. The goal of rule enforcement is to resolve the issue, not make it worse, so remember to conduct yourself in a calm and professional manner whenever speaking with owners about violations. Be understanding, be clear about how the issue can be resolved, by when the corrective action must be taken, and what will happen if the rule continues to be broken.